Appeal
from the Criminal Court for DeKalb County No. 2015-CR-12 Gary
McKenzie, Judge

Defendant,
David Roger Petty, was indicted for aggravated burglary and
theft of property valued at $1, 000 or more, but less than
$10, 000. Following a jury trial, Defendant was convicted as
charged. The trial court ordered concurrent sentencing for an
effective sentence of 15 years in confinement. In this appeal
as of right, Defendant contends that: 1) the evidence was
insufficient to support his convictions; 2) the trial court
erred in sentencing him; 3) the trial court erred by allowing
a State's witness to testify last despite having been
present during the testimony of the two preceding witnesses;
and 4) the trial court erred by allowing the State to use
evidence of Defendant's prior theft convictions for
impeachment purposes. Having reviewed the entire record and
the briefs of the parties, we affirm the judgments of the
trial court.

Thomas
T. Woodall, P.J., delivered the opinion of the court, in
which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.

OPINION

THOMAS
T. WOODALL, PRESIDING JUDGE

Facts

On July
8, 2014, Jonathan Walls left his house about 11:30 a.m. and
returned approximately one hour later. When he returned home,
he found that a door had been kicked in and his wife's
jewelry box was missing. Mr. Walls called the police to
report the incident. Mr. Walls did not see the perpetrator at
the residence.

Tracy
Ann Walls, Mr. Walls' wife, returned home from work after
Mr. Walls called her and told her about the break-in. She saw
that the side door was "smashed in." She observed
that her jewelry box had been taken from their bedroom. She
testified that her jewelry box contained approximately eight
to ten necklaces, valued at approximately $1, 000; a wedding
ring set, valued at approximately $800; a diamond pendant,
valued at approximately $250; "numerous silver earrings,
" valued at approximately $300; an amethyst bracelet,
valued at approximately $75; and "numerous silver rings,
" valued at approximately $60. The value of these items
was $2, 485. Ms. Walls estimated that the total value of all
the stolen jewelry was over $3, 000. After the burglary, Mr.
and Ms. Walls looked for her jewelry in local pawn shops.
They found some of Ms. Walls' jewelry at a pawn shop in
McMinnville and reported it to the lead detective in the
case.

Detective
Robert Patrick, of the DeKalb County Sheriff's Office,
investigated the burglary of the Walls' residence.
Detective Patrick testified that Ms. Walls identified some of
the items of jewelry stolen from her home at First Choice
Pawn Shop. Some of Ms. Walls' jewelry was recovered from
the pawn shop. Detective Patrick also discovered that
Defendant sold some of Ms. Walls' jewelry to Granny's
Gold Mine, a jewelry store in DeKalb County. When Detective
Patrick questioned Defendant, Defendant denied that he stole
jewelry from Ms. Walls' home. Defendant stated that his
co-defendant, Anthony Colwell, stole the jewelry. Defendant
stated that he pawned the jewelry because his co-defendant
did not have identification. Detective Patrick testified,
"that's ironically the same thing the co-defendant
said." There was no further testimony about what
"the co-defendant said, " thus it is not clear
whether the co-defendant admitted to committing the burglary
and taking the jewelry by himself, or whether the
co-defendant was denying his own involvement in the burglary
and taking of the jewelry. Defendant also stated that he
stole some of the items of jewelry from his co-defendant and
sold them by himself "to make him a little extra
money."

Lori
Doublestein testified that she had been the manager at First
Choice Pawn and Jewelry for five years. She testified that
she knew Defendant and that he was "one of [her]
customers." On July 8, 2014, the same day the Walls'
home was burglarized, Defendant and another man entered the
store. Ms. Doublestein testified that Defendant brought in
"quite a bit of jewelry." The jewelry included a
necklace with a mariner's cross, which Ms. Walls
identified as one of the necklaces missing from her home. Ms.
Doublestein testified that Defendant told her not to "be
loud" when she gave him the total payment for the
jewelry, because he did not want the man who was with him to
hear her. Ms. Doublestein made a copy of Defendant's
driver's license and paid him for the jewelry. Ms.
Doublestein testified that Defendant had been in the store
again the week prior to trial, and he asked if she remembered
how much she had paid him "because he wanted to make
things right." Ms. Doublestein did not accept any money
from Defendant.

Sandra
Kay Petty, Defendant's wife, testified that Anthony
Colwell, the co-defendant, came to her house on July 8, 2014,
and Defendant left with him.

Defendant
did not testify or present any other evidence at trial.

Sentencing
hearing

Bradley
Gabbert, an employee of the Tennessee Department of
Correction (TDOC), testified that he prepared the presentence
report. Mr. Gabbert testified that Defendant had "a very
extensive criminal history." He testified that
Defendant's prior convictions included shoplifting,
misdemeanor theft, DUI, disorderly conduct, assault with
intent to commit a felony, kidnapping, sale of marijuana, and
burglary. Defendant had previously violated parole twice, and
he violated probation five times. Mr. Gabbert testified that
Defendant had 11 prior convictions, including six prior
felonies.

Megan
Stone, another TDOC employee, met with Defendant during the
preparation of the presentence report. Ms. Stone testified
that Defendant stated that he had been using drugs for
"about 30 years." Ms. Stone asked Defendant to
submit to a drug screen, and Defendant initially refused,
stating that he was not on probation or parole. Ms. Stone
explained that the trial court had ordered a drug screen, and
Defendant submitted to the drug screen. Defendant tested
positive for marijuana, benzodiazepines, and multiple
opiates. Defendant stated that he did not have any
prescriptions and that he bought pills from friends.

Detective
Patrick testified that he recovered some of Ms. Walls'
jewelry at a pawn shop in Warren County. He testified that
the pawn shop had paid "roughly" $175 for the
jewelry. He testified that he recovered more of Ms.
Walls' jewelry at Granny's Gold Mine, and he was
"not quite sure on the amount of restitution owed to
Granny's Gold Mine." He testified that the value of
the property taken from Mr. and Mrs. Walls was $2, 000.

Defendant
testified that he fully cooperated with the investigation.
Defendant testified that Colwell asked him to go with him to
sell some jewelry. He stated that Colwell did not tell him
where he got the jewelry. Defendant added that he had been to
the emergency room the week prior to sentencing and was
diagnosed with pancreatitis. He testified that his
"aorta needs cleaned out, and they took [his]
gallbladder." Defendant claimed that he had "four
holes in [his] stomach." He was scheduled to return to
the hospital the following week. He said that if doctors did
not clean out his aorta, it was going to kill him.

Defendant
testified that he received food stamps and that he had no
other source of income. He said that he had "filed for
disability two or three times in the past" and that he
had been "waiting on a decision for four years
now." He testified that he had been living with his
sister "[o]n and off" since 2003.

On
cross-examination, Defendant acknowledged that he had an
extensive criminal history. He also acknowledged that his
drug use "probably caused some of" his health
conditions. Defendant testified that he believed the jewelry
Colwell asked him to pawn came from Colwell's girlfriend.

At the
conclusion of the sentencing hearing, the trial court stated
that it had considered the evidence at trial, the presentence
report, the principles of sentencing and argument as to
sentencing alternatives, the nature of the criminal conduct,
and the statutory mitigating and enhancement factors. The
trial court found that Defendant had seven prior felony
convictions and classified Defendant as a career offender.
The trial court considered Defendant's extensive criminal
history as an enhancement factor, but noted "I don't
think it really matters, because I've classified him as
career. . . . But I do, just for the record, say the prior
criminal history and the multiple convictions certainly weigh
strong for the state." The trial court gave little
weight to the mitigating factor that Defendant's conduct
did not cause serious bodily injury. The trial court noted,
"[w]hen you commit that type of behavior, you are
opening yourself up to a confrontation in an individual's
home, which could lead to violence." The trial court
also considered the mitigating factor that Defendant was
motivated by a desire to provide necessities for himself or
his family and that Defendant "did attempt to, I guess,
make good on the debt . . . but that did occur after
detection." The trial court determined that those
factors were not entitled to much weight. The trial court
found that confinement was necessary to avoid depreciating
the seriousness of the offense and to protect society from a
criminal with a long criminal history. The court concluded
that measures less restrictive than confinement had
frequently been applied unsuccessfully.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
trial court sentenced Defendant to serve 15 years for
aggravated burglary and 12 years for theft, to be served
concurrently, which the court noted was the "maximum
sentence allowable by law, " because the two convictions
"will merge." The merger analysis was misplaced.
During the sentencing hearing, the trial court, with the
explicit approval of and agreement by the prosecutor,
concluded that theft is a lesser included offense of
aggravated burglary, based on the reasoning that theft is a
lesser included offense of robbery. "Robbery is
the intentional or knowing theft of property from
the person of another by violence or putting the person in
fear." T.C.A. &sect; 39-13-401(a). Robbery cannot be
committed unless a theft is committed. Thus, theft is a
lesser included offense of robbery. As charged in the
indictment in this case, aggravated burglary is the entering
of a habitation, without the effective consent of the owner,
with the intent to commit theft. No theft is
necessary to prove aggravated burglary. The State was only
required to prove the intent to commit a theft. T.C.A.
§§ 39-14-402, -403. In any event, judgments were
properly entered without merger of the theft conviction with
the aggravated burglary conviction. The trial court
ultimately sentenced Defendant as a Range III ...

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